Friday, 26 September 2008

It is not often that the beginning of a judgment contains a profound statement, but in the recent Queensland Anti-Discrimination Tribunal case of Menzies v Owen, the beginning starts thus:

Ron Owen is entitled to be a homophobe and he is entitled to publicly expresshis homophobic views. That much is required in a society that values freedom ofthought and expression. However, there are limits.

The Tribunal then dealt with the anti-vilification provisions of the Anti-Discrimination Act. As well as being a significant gundealer, Ron Owen was also a local councillor in Gympie. He:

had a bumper sticker that read: "GAY RIGHTS? UNDER GOD’S LAW THE ONLY ‘RIGHTS GAYS HAVE IS THE RIGHT TO DIE LEV.20:13” [And here is what Leviticus 20:13 says in the King James version: "20:13 If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death; their blood shall be upon them."

at a council meeting said: “That’s because I probably don’t class the gays as being human”.

provided a report to council which said “Sodomite’s (sic) cannot reproduce, their only means of recruitment to their way of life is by preying on the children of normal human beings ...”.

said in a channel 7 interview: “I think it is a very perverse lifestyle. ... Can our health services cope with the sodomite’s epidemic? ... As you have prisoners who break the law lose certain rights and I do believe homosexuals lose rights. ... I think that they know they are going to die shortly I mean AIDS is pretty prevalent.”

said on a webpage: “No Human Rights For Non-Humans” which included a number of statements vilifying homosexuals, including “Any person who commits acts that no ignorant animal would commit declares war on his community, and therefore may be destroyed by any or all of that community ...” "There can be no genetic reason why any human is born into the world with that perversion implanted in them, if there was any evidence, common-sense would prove it was false. If it was the case, then as people of the same sex cannot reproduce themselves the genetic history would have died out many thousands of years ago.That is probably one of the good reasons why the death sentence is proscribed for the perpetrators, and any who condone them, in the Old and New Testament of the Bible. In those early days they were much smarter than the apathetic near brain dead community of today, as they knew that the only way perverts get new recruits, is to woo or pay them. They woo them by making it acceptable and common place. They cannot have their own children, so they steal others. This makes normal parents very angry. They have spent a good part of their own lives educating their children to be useful members of society, and when their children are ill used and perverted, when they are told by their local teacher, churchman, pop singer, or radio talk back creeps that it quite okay to do things that uneducated dogs and cats cannot and won’t do, then they become very confused. Some leave home, some commit suicide, but not because they had a defect when they were born, but because we have allowed creatures to prey on our young, who are just as savage as those tiger’s earlier discussed.".

The Tribunal found that Ron Owen had vilified 3 local lesbians, but not a local bisexual woman, and ordered that he pay a total of $12,500 in fines and place an apology in the local paper.

The Tribunal held:

However, the sticker went well beyond a mere joke and communicated a message that was both contemptuous and threatening. The bumper sticker implies that homosexuals have no rights, that others do not have to respect the rights of homosexuals, that the death of homosexuals is a good thing and that the killing of homosexuals is justified under God’s law. It conveys an attitude of contempt for the idea that homosexuals have rights. It carries the sinister undertone that homosexuals do not deserve to live.The ordinary member of the public would, in my opinion, understand that he or she was being urged to hate and to have serious contempt for homosexuals.The bumper sticker ridicules and is derisory of any claim by homosexuals that they have rights. Its tone is mocking. I find that its display also incited severe ridicule of homosexuals.

It is apparent from the reference in the bumper sticker to “Lev 20:13”... that Mr Owen’s conduct incited hatred towards, serious contempt for and severe ridicule of homosexuals was because such persons feel sexually attracted to members of the same sex or engage in sexual acts with members of the same sex. I find that Mr Owen’s incitement was on the basis of the sexuality of homosexuals.

There is little about the mode of communication of the public act or the content of the bumper sticker that suggests that its purpose, or that one of its purposes, was to promote public discussion or debate about the morality of homosexual activity or to expose such activity. The only reference that may suggest such a purpose is found in the notation “LEV.20:13”. There is no reference on the bumper sticker to any health issues affecting the sexual activity of homosexuals.The tone of the bumper sticker, as I have already said, is that it conveys contempt for the idea that homosexuals have rights and ridicules and is derisory of any claim that homosexuals have rights. It also appears to be an attempt at “bumper sticker humour” in that it contains a play on the word “rights”. This does not suggest to me that the purpose of displaying the bumper sticker, or one of its purposes was to promote public discussion or debate about or expose the immorality of homosexual activity.Bearing in mind that Mr Owen carries the onus of proof on this issue, I am not satisfied that the display of the bumper sticker was for any purpose in the public interest, including public discussion or debate or exposition of any act or matter.Even if it were shown that the display of the bumper sticker was for such a purpose, I would not be satisfied that Mr Owen has shown that it was done reasonably and in good faith.

Even if the display of the bumper sticker was done for the purpose of public discussion or debate about homosexuals or the morality of sexual activity of homosexuals, I would not regard it as having been done reasonably for such purpose, having regard to the content of the sticker. The language of the bumper sticker is derisory and contemptuous. It contains the disturbing undertone that homosexuals deserve to die and that they may legitimately be killed. While strong language and disturbing ideas may legitimately form part of public discussion or debate, it seems to me that the nature, tone and language used in the bumper sticker here goes beyond what is reasonable for the promotion of the requisite purpose.

The next statement made by Mr Owen was “As you have prisoners who break the law lose certain rights and I do believe homosexuals lose rights”. By making this comment Mr Owen was equating homosexuals with prisoners who had broken the law. The implication is that homosexuals are criminals. Mr Owen implied that homosexuality is against the law, or that it ought to be. He indicated that homosexuals should lose rights. His comments applied to all homosexuals, not merely some.

The House of Representatives, on party lines, has passed the Same-Sex Relationships (Equal Treatment in Commonwealth Laws- General Law Reform) Bill, part of the package of reforms put forward by the Government in response to last year's report by the Human Rights and Equal Opportunities Commission Report: Same sex: same entitlements.

Fairfax online reports that Malcolm Turnbull, who along with Tanya Plibersek has the highest concentration of LGBT voters in his electorate, was conspicuous by his silence in the debate.

More prominent was Queensland Liberal backbencher Stuart Robert who came out with these pearlers:

This bill, in giving such wide sweeping legal recognition as ‘parents’ toboth parties of a homosexual couple,gives implicit endorsement to these methodsused to conceive a child and the family construct they will grow up in. Tolegalise that a child can actually have, for example, two fathers and no motheris at odds with the norms that our society is built on.

I believe that deliberately creating a child to be placed in ahomosexual partnership is irresponsible, considering all of the availableevidence, and that the Commonwealth should not be complicit in allowing iteither by permitting access to reproductive or surrogacy services for suchcouples or by granting both partners equal recognition as parents.

He also stated that the Bill will allow the recognition of overseas same sex marriages for visa purposes under the Migration Act.

Debate on the Bill for the Government was led by Labor Queensland backbencher Shayne Neumann. He said:

Mr NEUMANN (Blair) (6.18 pm)—The Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008 will amend 68 Commonwealth laws. The Attorney-General said that the bill was long overdue. I think it is far from long overdue; it is very overdue. We should not treat Australians differently, whether they live in Tasmania or theTorres Strait, in Perth or Penrith, or in my electorate in Booval or Boonah, or in Kalbar or Karalee. It is simply wrong to penalise children on the basis of the sexualorientation of their parents. The best interests of children must be the paramount consideration in all legislation.It is unacceptable that more than 20,000 Australians are discriminated against and their families and children denied fundamental financial and work related entitlements which, for example, my wife and I and our children enjoy in what is often described as a traditionalmarital relationship. Why should my family be entitled to more in terms of carers’ leave, spend less for medical care, have better access to Medicare and thePBS safety net, and receive more tax concessions and enhanced pension rights than those who are my friends and family who live in same-sex relationships. It is unacceptable in a society which says that it aspires to a fair go to allow this sort of discrimination to continue.

If we say we live in a humane society, then we must believe that any child should have the same equality of opportunity and equality before the law as anyone else. And if we say we care about the financial security of all Australians, then we must pass this bill. Specifically, this bill inserts a new definition of a de facto partner into the Acts Interpretation Act 1901 to ensure equality for all. A couple will be taken to be living in a de facto relationship if they are living togetheron a genuine domestic basis, having regard to a whole range of factors included in the definition. Those factors are similar to what we have seen in state legislation governing property and spousal maintenance issues, and specifically in part 19 of the Property Law Act of Queensland and the Queensland Acts Interpretation Act. It is also akin to the groundbreaking billwhich we debated in this House a few weeks ago on a very long overdue Commonwealth jurisdiction enhancement in terms of family law disputes in relation to property and superannuation issues between de facto heterosexual couples and same-sex relationships.

Some of the factors that the court will have to look at to establish that the couple is actually living in a de facto relationship, whether of a heterosexual or homosexual nature, include the duration of the relationship, the nature and extent of their common residence, whether a sexual relationship exists, the care and support of children, the degree of mutual commitment to ashared life, the reputation and public aspects of the relationship and other factors. Interestingly, under proposed section 22B amending the Commonwealth Acts Interpretation Act, a person will be considered to be in a de facto relationship if that relationship is registered under a prescribed law of a state or territory as a prescribed kind of relationship. In other words, if the couplehas taken the time to register their relationship under state or territory schemes, they automatically come within the definition of a de facto relationship for the purpose of the Commonwealth, and so they can enjoy the entitlements that the legislation provides.

The bill expands the definition of ‘child’. It does not replace the definition of child in the current legislation;it expands the classes of children. It states that a child will be considered to be a person’s child where the child is the product of a relationship the person has had with another person or with another couple. The key definition of child is extended to include recognition ofchildren of opposite-sex relationships who are not covered by existing definitions in terms of other acts and other provisions. For example, if a child is biologically related to either member of an opposite-sex couple and was conceived through a private surrogacy arrangementeither by the use of artificial insemination or sexual intercourse, that child would be recognised.

Consent to the procreation of a child is not an express requirement in the key definition of child and that is because, as it has been described in the explanatory memorandum, the term ‘product of a relationship’ implies an element of joint endeavour. In the circumstances, the extension of class of children is a good thing for those children who in the past have not enjoyed the benefit of this type of legislation.

There is a lot of legislation being amended—68 Commonwealth laws. They cover a vast array ofCommonwealth jurisdiction and legislation, including legislation in relation to agriculture, fisheries and forestry and legislation under the Attorney-General’s purview. These include the Acts Interpretation Act, the Administrative Decisions (Judicial Review) Act, the Age Discrimination Act, the Australia Federal Police Act, the Bankruptcy Act, the Crimes Act, the Judges (Long Leave Payments) Act, and the High Court Justices (Long Leave Payments) Act. So there is a lot in terms of the Attorney-General’s portfolio, and you would expect that a lot of legislation would go towards that in which the Attorney-General has coverage. Thereare also changes in terms of the Broadband, Communication and the Digital Economy portfolio.

Defence also has legislation which is amended—specifically, the Defence Force (Home Loans Assistance) Act, the Defence (Parliamentary Candidates) Act and the Royal Australian Air Force Veterans’ Residence Act. Education, employment and workplace relations are also covered to ensure that children are not discriminated against in their educational opportunities. The Education Services for Overseas Students Act, the Higher Education Support Act and the Judicial and Statutory Officers (Remuneration and Allowance) Act are also amended.

There are some changes in the definition of stepchildren, step-parents and widowers. This is another area which needed reform. Ordinarily, references to stepchildren, step-parents and widowers means that there has to be a marital relationship. In the future, thatwill not be the case. The bill expands the definitions of stepchild and step-parent to include a child of an opposite-sex or same-sex de facto partner by a former relationship and includes same-sex or opposite-sex de facto partners of a parent of a child by a former relationship.That obviously intends to correct what has been a longstanding injustice.

There are amendments to the tracing rule as well, which will help identify familyrelationships. For example, where family relationships such as brother, aunt and grandparent are provided for in the bill, the tracing rule will allow those relationships referred to in the bill to include those relationships through a parent-child relationship.

I cannot really see how removal of discrimination against same-sex couples and their children in any way undermines marriage. It does not. It does not alter or affect marriage in any way whatsoever. I find it hard to accept that groups that have campaigned against this type of legislation claim to promote faith, family and freedom. How can they say that they promote these types of virtues when they oppose freedom from discrimination?

Many good friends of mine are involved in the Australian Christian Lobby and they have playeda constructive role in advocating for the relief of poverty, for more foreign aid to those countries that have been disadvantaged and they have rightly pushed the case for responsible alcohol consumption and protection of children from pornography and all its exploitation.

To its credit, the ACL has actually given approval to end discrimination and actually agreed that the state legislation in terms of registration of relationships is appropriate. But I do not agree with their criticism that the Rudd government is engaging in anything which would undermine marriage. The bill does not have this intention; it does not have this unintentional consequence.

This bill has its origin in the 2007 HREOC report, Same-sex: same entitlements. This bill the fulfilment of an election commitment. It is about lifting up; it is not about bringing down. It is not the thin end of the wedge. It is not a backdoor attempt to legislate for polygamous relationships, as was said previously in relation to the family law amendments. It is an attempt help people who are currently disadvantaged in our community.

There has been a lot of public comment in relation to interdependent relationships. This bill should not recognise interdependent relationships. How does one really define that? It is notoriously complex and it covers a vast array of relationships. It is almost impossible to quantify the cost to the Australian taxpayer if that were included in this bill. There is simplyno evidence or data from which one could calculate the expected number of relationships. Sadly, I think the infusion of this type of issue in the debate is a distraction; it is a ruse. It is a device to delay equality from being achieved.

It is a great shame that, in the nearly 12 years of the Howard government, they did not bring this type of legislation into the House. Their attitude to same-sex law reform could be characterised as idleness, indolence and inactivity. Their response in relation to helping people in these circumstances and their children is a disgrace. They did nothing. They promised much anddelivered little in this regard. They denied economic justice to same-sex couples. This bill will help tens of thousands of Australians and their children. About 20 per cent of lesbian couples and about five per cent of gay male couples have children. Their children will benefit. This bill overcomes the challenges left by the Howard government. It is a fair and humane bill. It isabout ending discrimination. It is about equality before the law. It is about financial security. It is about lifting up and helping fellow Australians to achieve their full potential in life and giving them the kind of life that those of us who are in other relationships take forgranted every day of our existence. I commend the billto the House.

The move towards a fair, inclusive and just society is a journey. It is a series of steps that this nation takes together, mostly forward but occasionally backward. The Same-Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Bill 2008 is most definitelya step forward. It is a significant piece of human rights legislation, and it is a significant piece of profamily legislation that will help to overcome the discrimination still faced by tens of thousands of gay and lesbian Australians, their families and their children.

This bill will amend 68 Commonwealth statutes to remove discrimination against same-sex couples and their children. These amendments extend across the entire scope of government activities because the discrimination experienced by gay and lesbian Australians has been both unjust and pervasive.

This bill is an acknowledgement that the Commonwealth has failed to ensure what should be a fundamental right for all Australians: equality before the law. Our Commonwealth has failed to provide equal access to health and social security. Our Commonwealth has failed to honour and support every one of our veterans. Our Commonwealth has failed to support equally allworking Australians as they save for retirement. Our Commonwealth has failed to treat with respect and dignity all Australian families. In short, our Commonwealth has treated gay and lesbian Australians as second-class citizens.

To consider just how pervasive this discrimination has been, it is worth listing some of the acts which are being amended by this bill: the Crimes Act 1914, the Commonwealth Electoral Act 1918, the Superannuation Act 1976, the Health Insurance Act 1973, the NationalHealth Act 1953, the Migration Act 1958, the Australian Citizenship Act 2007, the Privacy Act 1988 and the Corporatons Act 2001. Every single one of the acts that I have just mentioned is significant to our national life. They deal variously with the provision of government services, with participation by Australians in political life, with the relationship between individualsand the executive and with the functioning of our national economy. In every single one of these acts, we find discrimination against our fellow Australians.

The laws of this nation must speak to and reflect the lives that Australians lead. Australian families and relationships are diverse, and our laws should reflect this diversity....

The Aged Care Act effectively says to elderly gay and lesbian couples, many of whom have been together for much of their lives, ‘Your relationship does not exist. The relationship that you have built and the love and support that you have provided to each other count fornothing in the eyes of your government.’ And it also says something like this: ‘Because you are not in a relationship,if one of you requires care you will be charged higher costs. Your family home will not be protected and your partner may be forced to move intheir old age.’ The description of this situation as ‘discrimination’ seems almost too clinical. It is, in fact, cruel. It is offensive. It is mean-spirited. And it is unworthy of our Commonwealth.

Similarly, under the National Health Act 1953, same-sex couples and their families experience discrimination in accessing the Medicare and the Pharmaceutical Benefits Scheme safety nets. These safety nets exist to limit the amount that will be spent on medical expenses by people with high medical costs either through out-of-hospital expenses, in the case of theMedicare safety net, or through pharmaceutical expenses, in the case of the Pharmaceutical Benefits Scheme safety net. Neither the Health Insurance Act 1973, the legislation which governs the Medicare safety net, nor the National Health Act 1953, which governs the PBS safety net, recognises same-sex couples.

As such, same-sex couples and their families are placed at a financial disadvantage. In a family which faces high medical expenses, this may result in hundreds or thousands of dollars being paid out which an opposite-sex couple in a similar situation would be protected against paying.

Thursday, 25 September 2008

NSW laws recognising co-mothers have now come into effect, according to Fairfax online. The amendments, which also removed discrimination under 55 laws, were passed in June, after being amended at the urging of Fred Nile.

When I think of Brazil, my mind immediately turns to Rio and Carnivale, and I confess to thinking of Peter Allen or Barry Manilow singing.

However, whilst Peter Allen and Barry Manilow might have known about same sex relationships and sung about Brazil, my mind did not until now think of "Brazil" and "same sex relationships" in the same sentence.

However, events from Brazil show that, sometimes, courts in making decisions in their cases are able to move the political agenda along.

We saw this clearly demonstrated in Australia for example in the Mabo case.

Event 1

A gay couple, Antonio Carlos Silva and Professor Brent James Townsend, who married in Canada, wanted to allow Professor Townsend to migrate to Brazil, which meant that they had to show that their relationship would be recognised under Brazilian law.

They went to the Superior Court of Justice which held that there is no law banning stable unions between same sex couples. The case was remitted back to Rio authorities to determine whether to recognise the relationship.

Lawyer Maria Cristina Reali Esposito said:

"The court acknowledges the homosexual union as a family entity. Fromthere, you can look at ensuring other rights to gay couples, such as division ofproperty and child support in case of separation, for example."

For the report of the case in Google Translate, click here, for the report of the case in the original Portugese, click here.

Event 2

Immediately following the court case, there was a recognition in Brazil that they do have same sex relationships. Brazil's President Lula da Silva stated that same sex relationships should be recognised and embraced.

In June Lula became the first nation leader to launch a conference with thesole purpose of promoting gay equality, where he announced his support for gayrights, and stated he will "do all that is possible so that the criminalisationof homophobia and the civil union may be approved."A proposal granting same-sex couples the same rights as married heterosexuals has stalled in Brazil's Congress for more than 10 years, prompting some states to take their own action.Southern Rio Grande do Sul state has permitted same-sex civilunions since 2004, and a Sao Paulo state court allowed a gay couple to adopt a5-year-old girl in late 2006.

Wednesday, 24 September 2008

Yesterday I had the pleasure of meeting Kristianadel Pace and her partner Kristina, who are the founders of why can't we get married.com - which has the very simple idea that people should be free to marry, and that barriers such as race, religion and sexuality should not exist to prevent people from marrying.

WhyCantWeGetMarried.com is a space designed to breakdown stereotypes that existabout different races, religions and sexualities, and is dedicated to creating amore understanding and accepting global village.

Kristiana and Kristina are aiming to create a worldwide group designed to focus on equality and the very basic assumption that the right to marry is a fundamental human right and that people should be entitled to marry the person the love.

They can take inspiration from people like Richard and Mildred Loving, who through an accident of birth were white and black respectively, and as a result were persecuted by the US state of Virginia for having committed the crime of marrying across racial lines. They ultimately won in the US Supreme Court to show that they had a right to marry.

More recently, until her death in May, Mildred Loving felt that same sex marriage should be allowed, so as to stop outdated restrictions on allowing people to marry.

Friday, 19 September 2008

Some, like gay activist Rodney Croome have a more pessimistic view than I do about the Opposition views about same sex law reform, but what struck me about recent debate is how in many ways the debate had moved on.

When Brendan Nelson brought on the leadership vote, one of the key differences he was trying to pitch to his partyroom was that he supported the legislation for same sex reform. Not the economy or how to keep the Government accountable- but about same sex reform!

And then after Malcolm Turnbull was elected, there was this exchange with Kerry O'Brien on the 7:30 Report:

KERRY O'BRIEN: OK. I know that you're reluctant to get into policy detail at the moment, and you're not yet backing away from established Coalition policy. But during the last election, when you were struggling to hold your seat of Wentworth against the tide, and when the gay vote was very important to you, you promised to be a crusader for gay rights, delivering equality for same sex couples. You spoke in favour of the Government's bill on this issue in a speech in June and you had vowed to persuade Shadow Cabinet to support you. As leader, will you undertake to take - will you take shadow cabinet along with you? Will you tell them this is not negotiable for you? You'll tell your party that?.

MALCOLM TURNBULL: Well, Kerry, the Coalition, you know, the shadow cabinet, the party room is opposed to - or supports ending discrimination against same sex couples.

KERRY O'BRIEN: Do you feel that you have the full support of your party on this?MALCOLM TURNBULL: Absolutely.

KERRY O'BRIEN: OK.

MALCOLM TURNBULL: And that issue of ending that sort of legal or financial discrimination is, you know, that is our policy. Now, there are issues about drafting and language, but the principle of ending discrimination is a given. Having said that, it is our policy, as indeed it is the Labor Party's policy that marriage is a permanent union between a man and a woman. But having said that, that does not mean, and it most certainly does not mean that we should discriminate against relationships between people of the same sex.

We recently had the Opposition, first through Brendan Nelson and George Brandis saying that they supported the Government's views that there should be no discrimination against same sex couples (except when it comes to marriage - but both major parties are at one there), although there was a suggestion of fiddling about the edges and making provision for interdependent relationships.

The Coalition was accused of shuffling things off and slowing things down by flicking the Bills to Committee in the Senate, but it was surprising to some at least that all of the Committee were of the view that the de facto reforms to the Family Law Act should be enacted with priority, provided that there were minor changes.

One of things I found interesting about that process was the exchange that Senator George Brandis had with the representatives of Womens Legal Services Australia:

Ms Yates—In relation to the Tasmanian and ACT scheme, they do recognise bothinterdependent and conjugal relationships. They do that in different ways. Ofcourse in Tasmania you have the option of registering a caring relationshipor a significant relationship. WLSA’s position is not that interdependentrelationships should be left out in the cold by any means but rather looking at how it can best address the discrimination faced by de facto couples and the discrimination faced by interdependent couples, and perhaps there would be different criteria for recognising those two types of relationships.

Senator BRANDIS—I agree with you. I think that is right, but surely the way to go about this is to identify the important signifiers and treat all relationships that answer to those important signifiers in a nondiscriminatory way. For me, the phrase I have used, which is nothing more than my own, is to identify permanent loving domestic relationships between two people, which are not always sexual relationships, not always heterosexual relationships and not always homosexual relationships but have those three characteristics of being permanent loving domestic relationships. To me those are the core concepts here. If society does decide to deal with some relationships that answer to those characteristics, I cannot see why it is socially just not to deal with others. You are nodding. Does that mean thatyou agree with me?

Ms Yates—In the sense that WLSA supports the most flexibleand broadest possible capacity for recognition of different types ofrelationships, both conjugal and caring relationships, whether people thoseto marry or choose not to marry, and recognises that you need to have legalremedies available in situations where the breakdown of those relationshipsis likely to result in inequity. Again, it comes back to the modelthat we use to ensure access to justice in each of those circumstances and whether we use one overarching category or different categories. The states, such as theACT and Tasmania, have chosen to differentiate between those categories insome respects, between caring and other relationships. Broadly WLSAwill support access to justice and most flexible recognition schemes for alltypes of relationships. In this case we have focussed our submissions onconjugal de facto relationships, both same sex and opposite sex,simply because that is where our expertise lies. In our experience thegreatest need has come from those groups, but that would not stop us, ofcourse, from supporting recognition of interdependent relationships.

Senator BRANDIS—We are very like minded. We were reminded yesterday by one of our witnesses of Aristotle’s definition of ‘justice’ as being to treat like casesalike and different cases differently. If we were satisfied that the relevantcore concept here was the existence of a permanent loving domesticrelationship, albeit that such relationships might have a variety of other different features, but if that is the core concept then such relationships should be treated without discrimination, should they not, under my Aristotelian view?

Ms Rohr—It would be easier to answer that question on behalf of Women’sLegal Services Australia if we were aware of any such need in the community.We did seek feedback across our national network on whether there had beenany inquiries from clients for whom this interdependency category to which yourefer would have been of assistance in accessing justice, and in fact we didnot receive any responses that would indicate that that was the case. Apartfrom the hypothetical example of the spinster sisters, which I know getspassed around every time this issue is discussed, we are not actually awareof any cases in which it would have made a difference.

Senator BRANDIS—You have made it clear. That is a piece of empirical evidence, or non-evidence as it were, that has some relevance.

Ms Rohr—The fact that those cases are not known means that no feedback has been sought from those cases. It may be the case that the spinster sisters that are often used as an example would be horrified to know that their social security payments could be impacted upon by being considered interdependent.

Senator BRANDIS—We are conscious that this cuts both ways and there are ways to deal with that.

Thursday, 18 September 2008

Same-sex discrimination will be removed from child support, under amendments circulated in Parliament today. The amendments, to section 60H of the Family Law Act, implement a bipartisan recommendation by Labor and Liberal Senators on the Senate Legal and Constitutional Affairs Committee in August. They also form part of the 58 areas of discrimination recommended for removal by HREOC in its landmark Same-sex: Same Entitlements report. They continue the Rudd Government’s implementation of its election commitment to remove same-sex discrimination from a wide range of Commonwealth laws. “Children who are raised by a same-sex couple currently face financial disadvantage if the couple separates because they cannot access child support,” said Mr McClelland. “The amendments will ensure these children can have their parents recognised and have access to child support in the same way as children of opposite-sex couples who separate.” “This will help ensure children are protected and are not discriminated against simply because of the structure of their family.” “I thank the Senate Committee for its bipartisan recommendation on this issue.”

Tuesday, 16 September 2008

The Hope Research Institute in Melbourne is seeking HIV positive people for possible research testing. The Institute recently conducted research in Angola apparently showing that electrotherapy was able to dramatically reduce viral loads for 26 patients given daily electrotherapy for 2 months, as opposed to a control group of 27 patients.

Sunday, 14 September 2008

Back in May I posted about how Queensland Attorney Kerry Shine was seeking to amend the Status of Children Act so that the position of IVF dads becamse clear- if they were to donate sperm to single mums or a lesbian couple, then they would not be dads in law.

I had chased up Kerry Shine's office- twice- as to whether the proposed changes would cover men offering sperm to their female friends, but my calls were not returned and I was none the wiser.

At the time that Kerry Shine made the announcement, he considered that part of the reason for making the changes was so that sperm donors to IVF women would not be fathers and therefore would not be required to pay child support. He proposed that the laws be retrospective to 1988- when the Status of Children Act was enacted!

So what do they mean? If enacted, the Bill would make ensure that if a woman other than a married woman were to have a child by a sperm donor- if she were to go through IVF, then the donor will NOT be the father and will never have the rights of fatherhood unless and until he marries her. It doesn't matter if the woman and the man agree that he is to have those rights- that agreement is irrelevant.

However, if the man donates sperm to the mother other than through IVF, then it is possible that he might be considered to be the father, in which case there would be certain rights under the Family Law Act, including the presumption of equal parental responsibility, and the obligation to pay child support.

Although there are two decisions of the Family Court which in part dealt with Victorian legislation which would suggest that the known sperm donor would not be a father or parent under the Family Law Act and under child support legislation, there is no guarantee that that court will follow the same approach with the Queensland legislation, especially when the Attorney expressly stated that part of the purpose of the legislation was so that donors would not have to pay child support. If the legislation that he is proposing does not include known donations other than via IVF, then this of itself raises the possibility that known donors other than through IVF might be treated as fathers and liable to pay child support (and seek to make decisions about the child and spend time with the child, maybe even equal time, relying on the Family Law Act).

Here is the curiously drawn proposed section 18AA:

18AA Implantation procedure—Presumption as to statuswhere donor semenused‘(1) A reference in this section to a fertilisation procedure isareference to the procedure of implanting in the womb of awoman anembryo derived from an ovum produced by her andfertilised outside her bodyby semen produced by a man whois not her husband.‘(2) If a woman hasundergone a fertilisation procedure as a resultof which she has becomepregnant, the man who produced thesemen has norights or liabilities in relation to any child bornas aresult of the pregnancy happening because of the use ofthe semen unless, at any time, he becomes the husband ofthechild’s mother.‘(3) The rights and liabilities of a man whoproduced the semenand becomes the husband of the mother of a child born asaresult of a pregnancy mentioned in subsection (2) are therights andliabilities of a father of a child but, in the absence ofagreement to thecontrary, are restricted to rights andliabilities that arise after the manbecomes the husband of thechild’s mother.

What is clear from this section is that a sperm donor can never be assumed to be a father in this context, unless he marries the mother. What is more, any agreement that he might enter into with the mother (or for that matter her partner) is not legally binding unless he marries the mother.

So much for those gay fathers and lesbian mothers and co-mothers who want to enter into agreements- tough luck unless mum and dad are married!

As is usual with this area of law- get good legal advice first!

Then there is the curious section 18AB:

18AB Implantation procedure—Presumption as to statuswhere donor ovumused‘(1) A reference in this section to a fertilisation procedure isareference to the procedure of implanting in the womb of awoman anembryo derived from an ovum produced by anotherwoman and fertilised by semenproduced by a man who is notthe husband of the first mentionedwoman.‘(2) If a woman has undergone a fertilisation procedure as aresultof which she has become pregnant—(a) the woman who has undergonethe fertilisationprocedure is presumed, for all purposes, to havebecomepregnant as a result of the fertilisation of an ovumproduced byher and to be the mother of any child bornas a result of the pregnancy;and(b) the woman who produced the ovum from which theembryo used in theprocedure was derived is presumed,for all purposes, not to be the mother ofany child bornas a result of the pregnancy.‘(3) A presumption of lawthat arises by virtue of subsection (2) isirrebuttable.‘(4) Also, theman who produced the semen has no rights orliabilities in relation to anychild born as a result of thepregnancy happening because of the use of thesemen unless,at any time, he becomes the husband of the child’smother.‘(5) The rights and liabilities of a man who produced thesemenand becomes the husband of the mother of a child born as aresult ofa pregnancy mentioned in subsection (2) are therights and liabilities of afather of a child but, in the absence ofagreement to the contrary, arerestricted to rights andliabilities that arise after the man becomes thehusband of thechild’s mother.’.

Again the same scenario applies- although in this case the mother is carrying sperm of the father (again only via an IVF type procedure is good enough for this legislation) and the egg of another woman. The woman giving birth would be the mother. The other woman would not, and the man would have no rights (and no obligation to pay child support) unless he married the mother.

What is curious about this section is what it does not say. Currently if a woman (in this case the mother) were to do this, then she might fall foul of the Surrogate Parenthood Act 1988. I won't go into the technicalities here but potentially under that Act, both women and the man might be committing an offence. The new section would make it clear that that behaviour (as described precisely in section 18AB) is not that of a surrogate and therefore an offence is not being committed.

The explanatory notes to the relevant part of the Bill state:

The objectives of this Bill are to –...•• amend the Status of ChildrenAct 1978 to correct an anomaly inprovisions relating to in vitrofertilisation procedures forunmarried women and married women who underwentsuchprocedures without the consent of their husband.

Amendments to Status of Children Act 1978The purpose of the Statusof Children Act 1978 (SCA) is to protect childrenby conferring parentalstatus on adults to enable them to exercise thepowers and responsibilitiesof parents under statute and common law tocare for their children.TheSCA creates parentage presumptions for the married mother of a childborn asa result of artificial insemination or a procedure where an embryofertilisedoutside her body is implanted in her womb (in vitro fertilisation).The SCAalso creates presumptions of law for the mother’s husband ormale de factopartner. The donor of semen or ovum is presumed to not haveproduced thesemen or ovum and not to be the father or mother of the childborn as theresult of such a procedure.However, where an in vitro fertilisationprocedure is performed on anunmarried woman (a single woman or woman in asame sex relationship)or a married woman without the consent of her husband,the donor ofsemen or ovum is not excluded from any responsibilities orrights inrelation to a child born as the result of such a procedure.Thisunintended anomaly creates uncertainty for the status of children bornas aresult of such procedures and the rights and liabilities of donorsofGuardianship and Administration and Other Acts Amendment Bill2008semen or ovum. The Bill addresses this anomaly by clarifyingtheparentage status of children and the parentage status and rightsandliabilities of donors.

The Bill does not allow for the NSW situation of recognising the father as the father if he desires it.

Thursday, 11 September 2008

Yes, I know the overlap was not intentional, but given the notorious activities of some of the cloth, couldn't the cathedral lovers have chosen a better week to celebrate than in National Child Protection Week?

The Senate Standing Committee on Legal and Constitutional Affiars has released its report into the proposed changes to the Family law Act which will allow de facto couples, including same sex couples, access to uniform property settlement in either the Family or Federal Magistrates Courts.The committee recommends that the Bill be passed with only minor changes.It said:This Bill gives effect to a decision at the November 2002 meeting of theStanding Committee of Attorneys-General and is supported by many of the keystakeholders. The Bill also implements important aspects of the HREOC Same-Sex:Same Entitlements report. In this context, the committee strongly supports theinclusion of same-sex couples in the definition of 'de facto relationship' andconsiders that the removal of discrimination on the basis of sexuality in thefamily law system is long overdue. The committee commends HREOC for itsexcellent work in this area.The committee considers that it is important to recognise the reality that increasing numbers of Australians are living in de facto relationships, and that there is a need to streamline legal processes for such couples if their relationship breaks down. It makes sense toprovide a consistent national scheme to enable de facto couples to accessthe federal family law system for all proceedings, instead of the current process of federal court access for child-related matters and state and territory courts for financial matters.In turn, the committee agrees that this will reduce the costs and inconvenience for de facto couples, as well as reduce the administrative burden on the federal and state court systems. The committee considers that this is particularly important where there are children involved in the breakdown of a de facto relationship. The committee accepts that it is not the objective of this Bill to undermine the institution of marriage in any way.For the above reasons, the committee supports the Bill and believes itshould be passed as a matter of priority.

The recommendations of the committee are:The committee recommends that the definition of 'child of de facto relationship' in proposed section 90RB of the Bill and the parenting presumptions in section 60H of the Family Law Act 1975 be amended to allow children of same-sex relationships to be recognised as a child of the relationship for the purposes of the entire Family Law Act 1975. In making this recommendation, the committee recognises that the interests of the child must be of paramount consideration.Without derogating from the independent and privileged status of marriage, the committee recommends that the Federal Government undertake a review of all federal legislation containing definitions of:'de facto' and 'couple' relationship and 'de facto partner' and all related definitions; and'child' and 'parent', including parenting presumptions, and all related definitions;with a view to ensuring consistent concepts and terminology are used wherever appropriate.The committee recommends that the Federal Government renumber the Family Law Act 1975 in subsequent legislation. [Hooray- now it will no longer be like the Tax Act and can possibly be read!]The committee recommends that the transitional provisions in the Bill be amended to enable de facto couples to 'opt in' to the new regime by mutual agreement, subject to appropriate safeguards, where their relationship breaks down before commencement and their property or maintenance matters have not been finalised before commencement.Subject to the preceding recommendations, the committee recommends that the Bill be passed.

A full copy of the report of the committee can be found here- PDF files.

Extracts from the Report

(T)he primary purpose of the Bill is to enable the federal family courts to deal with both financial and child-related matters arising for separated de facto couples in the one proceeding. As a result, the Bill aims to avoid the unnecessary additional costs and inconvenience on de facto couples, as well as reduce the administrative burden on the federal and state court systems.[1]3.3 In general, many submissions and witnesses were strongly supportive of the Bill. A key reason for this support was because it would streamline processes for both same-sex and opposite-sex de facto couples, and allow them access to the specialised forum of the Family Court (including its mediation procedures) to resolve property and maintenance disputes at the same time as child-related proceedings.[2] Of those who supported the Bill, many raised drafting issues, but nevertheless urged the government to proceed with the legislation as a 'matter of priority'.[3] Those who objected to the Bill outright generally raised concerns about the Bill's impact on the status of marriage and/or the perceived extension of marriage rights to de facto couples.[4]3.4 The Family Law Section of the Law Council of Australia (Law Council) described itself as 'a vigorous supporter of the objective that family law should apply in a consistent and uniform way to married and de facto relationships nationally'.[5] The Law Council argued that this 'much-needed and socially advantageous legislation' is:...long overdue given the high and ever-increasing percentage of Australians who live — regardless of gender — in marriage-like relationships in preference to formal marriage.[6]3.5 Mr Ian Kennedy, Chair of the Family Law Section of the Law Council summarised some of the problems with the current system:In more recent years, of course, [de facto] couples have been able to have issues relating to their children determined under the Family Law Act. The paradox of that is that it has compounded the impact on them as the Family Law Courts have not had the power to deal with the financial consequences of relationship breakdown. So non-married couples have had to have their issues resolved in two different jurisdictions—the federal jurisdiction for their children and the state jurisdiction for financial issues—at very significant additional cost and with stress on the families.[7]3.6 Similarly, Women's Legal Services Australia (WLSA) were strongly supportive of the Bill. Ms Heidi Yates of the WLSA explained that it wants to ensure that the justice system produces the most just and equitable outcome for women and their children:At present, the Family Court, as a specialist court, with particular ability to look at the future needs of the primary caregiver and their ability to care for the children, provides the most just and equitable outcome and therefore it would be most appropriate if both de facto and married couples could use that federal system. It also promotes consistency, simplicity of advice and I think amongst the community members a more consistent understanding of what their rights and obligations are.[8]3.7 Another reason WLSA supported the Bill was from a children's rights perspective. WLSA believed that, under the current system, the limited coverage and inconsistent features of state and territory schemes means that children of de facto couples currently receive less protection compared to children of married couples.[9] Ms Heidi Yates of WLSA explained:It is essential that when distributing property the court consider the future needs of the parties, specifically the resources required by the primary caregiver to housing care for the children after separation...only some of the existing state and territory de facto schemes allow for consideration of future needs.[10]3.8 Ms Yates continued:Further, when it comes to spousal maintenance, the Family Law Act requires a party to financially maintain their ex-partner if that partner is unable to support themselves because they are caring for the children. We also submit that spousal maintenance orders can support a child's right to an adequate standard of living upon separation by providing the primary caregiver with additional income. At present a primary caregiver cannot access maintenance payments in some jurisdictions[11] and in others can only receive such payments until the children become 12 years of age.[12]3.9 The Australian Institute of Family Studies (AIFS) also supported the Bill. It outlined some of the research it had undertaken, which shows that:cohabitation has become an increasingly common family form (the 2006 census data shows that 15% of all persons living with a partner were 'cohabiting'); [13]the number of children being born into cohabiting relationships is also increasing;children living with cohabiting parents appear to be less well-off than those living with married parents; andchildren living with cohabiting parents appear to be more likely to experience parental separation.[14]3.10 In response to further questioning on the duration of marriages compared to cohabiting relationships, the AIFS informed the committee that:The probability of a marriage ending in divorce appears to have been increasing...33% of all marriages that began in 2000-2002 could be expected to end in divorce, compared with 28% of all marriages that began in 1985‑1987. However, the estimated expected duration of marriages that end in divorce has increased...[A]mong men who obtained a divorce from their first marriage, the average expected duration of their marriage increased from 11 years for those who married in 1985-1987 to 14 years for those who married 2000-2002.[15]3.11 In contrast, the AIFS informed the committee that the median duration of a cohabiting relationship for those who separated was around 2 years (excluding first cohabitation following marriage).[16]3.12 The committee notes that data from the Australian Bureau of Statistics also shows that, for those people who got married in 1985–1987 and 2000–2002, the expected average duration of their total married life remained unchanged at around 32 years.[17]3.13 Other information from the AIFS showed that:'cohabiting relationships are far more likely to dissolve than marriages'; and'regardless of the period in which cohabitation or marriage began, the likelihood of a cohabiting relationship ending in separation within five years was at least three times the likelihood of a marriage ending in divorce within five years (25–38% vs 7–9%).'[18]3.14 Based on its research, the AIFS supported the Bill, concluding that:Given the increasing prevalence of cohabiting relationships, and the increasing number of children cared for in such relationships, the removal of legal distinctions between the post-separation financial regulation of cohabiting and married relationships appears justified.[19]3.15 As a representative of the AIFS told the committee:The primary rationale for the institute's support is that the scheme has the potential to alleviate some of the family stress associated with relationship breakdown.[20]3.16 However, some submissions opposed to the Bill argued that same-sex and de facto couples can use the current state systems and/or contracts and 'civil law' to protect their interests and to access property and maintenance settlements. For example, FamilyVoice Australia argued that the Bill was 'redundant' and that:It is open to the parties in a de facto relationship, and to the parties in a same-sex relationship, to enter into civil contracts to protect their individual interests in property. Any such contracts should be governed by State and territory law. There is no need for them to be included within the purview of the Family Law Act 1975.[21]3.17 However, as outlined above, the committee heard a great deal of evidence pointing out the problems with the current system, which included duplication, inconsistency, cost and inconvenience.3.25 The AIFS told the committee that it had not done any research on any differences between same-sex and opposite-sex de facto relationships, or development outcomes for children in those relationships.[31] However, the NSW Gay and Lesbian Rights Lobby pointed to a range of research which 'demonstrated that children raised by lesbians and gay men are just as happy and well adjusted as children raised in other familial structures'.[32]3.34 Professor Parkinson similarly believed that the Bill should be withdrawn until further research and consultation has been conducted as to:Whether the proposed laws discriminate against people in heterosexual de facto relationships who have chosen not to marry by depriving them of the fruits of that choice.[40]3.35 Professor Parkinson explained further:...we have simply not asked the Australian people whether they want marriage to be treated the same as cohabitation, and we have not asked heterosexual de factos whether they want that. Most of the sociological evidence is against it. Most of the sociological evidence I have read suggests that there are quite significant differences between people who have chosen to marry or intend to marry and those who have not. What we are doing in this bill is wiping out all those differences and treating everybody as 'married'.[41]3.36 In contrast, the Law Society of New South Wales (NSW Law Society) submitted that the Bill was consistent with community attitudes:Overall, the reform proposed by the de facto property settlement provisions is consistent with the changes in attitudes within the community reflected in the viewpoint that the law should treat the economic consequences of the breakdown of de facto opposite sex relationships and same sex relationships in the same way as the economic consequences of the breakdown of marital relationships.[42]3.37 In this context, at least in terms of same-sex couples, it is noted that research and consultation conducted by the NSW Law Reform Commission indicated that members of the gay and lesbian community believed that same-sex relationships should be treated the same as marriages.[43]

Same-sex couples3.69 Many submissions were particularly supportive of the inclusion of same-sex couples in the definition of 'de facto relationship' on the basis that it would remove discrimination against same-sex couples in the area of family law, and therefore implement aspects of the HREOC same-sex inquiry.[78]3.70 Mr Graeme Innes stated that HREOC supported the definition of 'de facto relationship' contained in the Bill 'because it brings equality to same-sex and opposite-sex couples'.[79] As noted earlier, in HREOC's view, the definition of de facto relationship in the Bill is essentially the same as the model definition recommended in its Same-Sex: Same Entitlements report.[80]3.71 Similarly, the Law Council commented that it was pleased that the rights of unmarried couples (including same-sex couples):...will now be able to be determined in specialist courts on a nationally consistent basis throughout the country rather than by a quirk of geography (dependent upon where they happen to live or where a disputed property is located) or as a consequence of gender.[81]3.72 A standard submission provided to the committee received from 41 individuals stated:Allowing same-sex couples to have access to the Family Court will minimise the cost and trauma involved with a relationship breakdown, whilst increasing privacy of those undertaking proceedings. I strong[ly] urge the Senate to support this inclusive reform for all defacto couples, including same sex couples.[82]3.73 Lesbian and Gay Solidarity (LGS) Melbourne supported the Bill, describing it as a 'step forward', but expressed regret that same-sex couples were still not being treated as equals with married couples:...same-sex couples will still have to prove they are in a genuine de facto relationship by conforming to a set of standards listed in this Bill...It is still not equality with married couples despite a same‑sex relationship being a loving partnership. Surely, the government needs to revise its objection to a legal document (officially recorded and similar to a marriage certificate) which unites a same-sex couple if they so wish.[83]3.74 In contrast, the Shared Parenting Council of Australia claimed that the Bill was 'a clear attempt to advance the concept and realisation of same-sex marriage (de facto marriage) by legislative stealth'.[84]

Recognition of relationship registers

3.75 Proposed paragraph 2(g) of the definition of de facto relationship provides that one of the circumstances that a court may consider in determining whether or not a de facto relationship exists is 'whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship'.3.76 Several submissions suggested that registered relationships should be treated as a completely separate category to de facto relationships, or at the very least, a registered relationship should be conclusive proof of a de facto relationship.[85]3.77 For example, Mr Rodney Croome of the Tasmanian Gay and Lesbian Rights Group expressed the view that:...a registered relationship is neither a de facto relationship with a certificate nor marriage by another name. A registered relationship is a new kind of legally recognised relationship...when couples choose to enter into these formalised relationships, they are choosing to no longer to be considered a de facto couple. That would seem to be a mischaracterisation of their relationship.[86]3.78 WLSA also suggested that the Bill should be amended to recognise the 'unique status of registered relationships'. WLSA argued that:...it is inappropriate that relationships which have been registered under a prescribed law of a State or Territory be subsumed back into the category of 'de-facto' relationships under federal law...[R]egistered relationships should be recognised as an independent, third category of relationship under federal law, along with marriage and de facto relationships.[87]3.79 Alternatively, WLSA advocated that, at the very least, if a de facto relationship is registered under a state or territory scheme, this should be conclusive proof of a de facto relationship:This approach would promote certainty and reduce the court resources and legal costs that might otherwise be required to determine the legal status of the registered relationship.[88]3.80 As noted earlier, Mr Wayne Morgan suggested that the ideal approach would be for the Commonwealth to insert an 'umbrella' term (such as 'couple relationship'[89]), into the Acts Interpretation Act 1901, which would treat a 'registered relationship' as a separate category to a marriage and a de facto relationship.[90] As a fallback position, Mr Wayne Morgan again considered that registration of a relationship under a state or territory law should be conclusive proof of the existence of a de facto relationship under Commonwealth law.[91]3.81 In response to suggestions that a registered relationship should be conclusive evidence of a de facto relationship, a representative of the Department informed the committee that its legal advice indicated that the Commonwealth does not have the power to make a registered relationship determinative of a de facto relationship due to the nature of the state referring legislation:...our advice is that the breadth of relationships that could be registered under state law means that they may be relationships that would not otherwise be regarded as a de facto relationship, and therefore our power does not extend that far.[92]3.82 The representative further explained that:What the Commonwealth has done, in its view, is to extend to registered relationships a recognition, to the extent that it can, firstly, by making that a factor...[T]here are effectively two hurdles for someone to get through before they get an order from the court. One is that they have a de facto relationship. The second is that they have either a de facto of two years, there are children of the marriage or unjust hardship, or there is a registered relationship. That is conclusive. Once you have got through the 'de facto definition', then a registered relationship is enough.[93]3.83 In relation to proposed paragraph 2(g), LGS went further, asserting that the Federal Government should provide its own genuine same-sex relationship legal register which is the equivalent of the marriage licence, and that:As with hetero (different sex) couples who prefer not to marry but live together in a de facto relationship, there would be plenty of same-sex couples who would prefer to do the same. Just as many same-sex couples, though, would be committed to a licensed federal partnership. It is therefore unfair of the federal government to refuse them equality with a woman and man's married partnership.[94]3.84 In contrast, FamilyVoice Australia objected to proposed paragraph 2(g) due to concerns about its impact on the status of marriage (as discussed elsewhere in this chapter).[95]3.101 Section 60H makes presumptions about who are the 'parents' of a child born as a result of assisted reproductive technology (ART) for the purposes of the Family Law Act. Section 60H effectively recognises a birth mother and the male partner of a birth mother as parents. However, a female partner of the birth mother (lesbian co‑mother) and a male partner of a birth father (a gay co-father) are not considered to be parents. As HREOC pointed out in its Same-Sex: Same Entitlements report, a child born to a same-sex couple will often have only one legal parent for the purposes of the Family Law Act.[115]3.105 Professor Jenni Millbank submitted that the Bill's approach to section 60H was its 'major failing'. Professor Millbank expressed the view that:It makes no sense to acknowledge the existence of a parent-child relationship for the purpose of property division but not for the purpose of child support or child maintenance, parental responsibility, or for decisions about time with children.[124]3.106 Professor Millbank explained further during the committee's hearing:We have a quite crazy position where children are children for the purposes of assessing contributions—homemaker and care-giving contributions—through the course of a relationship. Children are children for the purposes of being assessed for future needs provision if one parent is the primary caregiver for the children after separation, but children are not children for the purposes of being children. They are not children for the purposes of parental responsibility or for the presumptions or guidelines in the division of time with children when parents separate. For lesbian couples who have children through ART, that is a completely unnecessary burden...[125]3.107 Similarly, Mr Kassisieh of the NSW Gay & Lesbian Rights Lobby explained to the committee:So the mother is a mother for the purposes of who gets the house, who gets the car and the future needs of the children. She is not a mother to her children for the purposes of where the children will live and who the children will spend time with.[126]3.108 Associate Professor Miranda Stewart similarly agreed that the approach to section 60H in this Bill is 'illogical':Why recognise for property division purposes but not for parental responsibility purposes that this couple is raising a child? It is a gap, I think, in the bill, and I would submit that...it would be appropriate to extend that parenting presumption.[127]3.109 She further observed that:The bulk of children of same-sex relationships at the moment, I think the statistics make clear, are born to and raised by lesbian couples. In most cases, obviously, there is donor insemination generating these new families. An appropriate and easy way to recognise all of those families would be to amend section 60H of the Family Law Act...[128]3.110 HREOC had other concerns about the reliance of subsection 90RB(3) on section 60H of the Family Law Act. HREOC pointed out that the application of section 60H 'is uncertain due to judicial interpretation' – for example, different cases have found both that a donor father is not a parent and that a donor father is to be considered a parent.[129] HREOC also pointed out that extension of section 60H to same-sex couples does not ensure parental status for gay fathers whose child is born through a surrogacy arrangement.[130]3.111 Similarly, Professor Millbank suggested section 60H 'has been crying out for amendment for the past 15 years' as it is 'confusing, inconsistent with state law, uncertain in operation and discriminatory'.[131]3.112 Indeed, the committee heard that section 60H of the Family Law Act and the approach in this Bill is inconsistent with the majority of states and territories. The committee was told that in WA, the Northern Territory, the ACT, New South Wales and under proposed Victorian legislation, a female de facto partner of the birth mother is also accorded parental status.[132]3.113 Some witnesses noted that it was possible for certain gay and lesbian co‑parents to go 'through a complicated legal process to be recognised as parents under the law'.[133] That is, they can go to state courts, or apply to the Family Court in its cross-vesting jurisdiction to apply territory law, for recognition as a parent. They can then use section 69S of the Family Law Act, which provides that, where an order has been made that someone is a parent in another court, this order is conclusively binding on the Family Court. However, it was argued that this is a costly and cumbersome legal process and not in the best interests of children.[134]3.114 For example, Professor Millbank explained that:For intact lesbian couples, it is incredibly important that both parents have parental responsibility for their children. In all states and territories, if they are having kids through donor insemination at home or through a clinic or IVF, there is no legal father and there is one legal mother—the one who had the child. The other mother in that household does not have parental responsibility over her child, despite the fact that she is a functional and intended parent of that child and is caring for that child. That is terribly difficult for families while they are intact. Many lesbian mothers now go to the Family Court to seek orders by consent to get themselves parental responsibility. It is not as though the law has made that impossible; it has just made it very hard, expensive and available only to the people who have the gumption to pursue it.[135]3.115 Professor Millbank further explained that the current section 60H causes problems in related provisions in the Family Law Act and related legislation.[136] For example, several witnesses pointed out that the definition of parent in the Child Support (Assessment) Act 1989 (Cth) relies on the definitions in the Family Law Act. This causes further disadvantages to same‑sex parents, which would not be removed by this Bill.[137]3.116 Most submissions and witnesses suggested that a preferable approach would be to amend section 60H directly so that it is expressed in gender neutral language.[138] As Ms Heidi Yates of WLSA told the committee: 'no child should suffer discrimination because of the gender of the parents'.[139]3.117 The Victorian Gay and Lesbian Rights Lobby supported the 'limited extension of section 60H' in the Bill, but urged that its application be extended 'to all circumstances to ensure that children of same-sex couples are protected without limitation like every other child in Australian families'.[140]3.118 Professor Millbank suggested that section 60H also needs to be amended to 'make it clear how 60H fits into the Family Law Act as a whole'.[141] In addition to amending section 60H, Professor Millbank considered that the definition of 'parent' in section 4 of the Family Law Act should also be amended.[142]3.119 However, the Human Rights Commissioner, Mr Graeme Innes, pointed out that, even if section 60H were amended to use gender neutral language, 'there will be no protection of a child born through a surrogacy agreement to gay fathers'. Currently, a gay co-father of a child born following an ART procedure is not considered to be a parent under Part VII of the Family Law Act.[143] Mr Innes suggested that an amendment of section 60H would need to be accompanied by 'uniform reform of state surrogacy laws'. In the absence of such reform, HREOC's preferred approach was the 'more inclusive definition' of child as a 'product of a relationship' contained in the Same-Sex Superannuation Bill.[144]3.120 In contrast, Professor Millbank felt that the definition of child as a 'product of a relationship' in the Same-Sex Superannuation Bill was a mistake and should not be used elsewhere.[145] Professor Millbank was concerned that there is a range of different definitions of child across federal legislation. She suggested a 'quick and dirty' audit of federal legislation with a view to developing a 'uniform, simple definition', that is:...a simple conceptual basis of the parent-child relationship that is put into either the Family Law Act or the Acts Interpretation Act and then mirrored out to all the other acts. So every other act could say that 'parent' or 'child' means the definition in the Family Law Act or the Acts Interpretation Act. I think it is time we did that. I do not think it is that hard a thing to do. That is what I would like to see come out of some of this process, rather than this kind of ad hoc approach of: 'Oops, we’ve got this problem. We've got some people who are left out. Let's toss in another thing.'[146]3.121 Professor Millbank agreed that there would still then need to be reform of surrogacy laws. She acknowledged that:HREOC and I have disagreed a little about this. They favour the 'product of the relationship' category because they are concerned about the coverage of gay men who have children through surrogacy...I do not want to exclude gay men who have children through surrogacy, but there are issues with how they have children. The issues around consent and so on are the very same issues that heterosexual families who have children through surrogacy have, and that should be reformed through the reform of surrogacy law... [T]he issues are very similar and should be dealt with across the board rather than through ad hoc messing with the existing presumptions.[147]3.122 Similarly, Mr Kassisieh of the NSW Gay & Lesbian Rights Lobby also suggested that 'where gay men have children there needs to be other types of reform, particularly in surrogacy'.[148] Ms Kassisieh and Ms Gray noted that surrogacy reform was needed in the context of heterosexual couples as well, and that this issue was perhaps outside the scope of this Bill.[149]3.132 Both the Law Council and the NSW Law Society called for the Family Law Act to be renumbered. The Law Council submitted that its provisions should be rearranged in a 'more logical and accessible form':As a result of numerous amendments over 30 years the structure and numbering in the Act have become unwieldy and unnecessarily complicated and increasingly difficult to navigate for experienced practitioners let alone the general public.[159]3.133 The NSW Law Society similarly suggested that the general structure of the Bill is not 'user friendly' and that it was a 'missed opportunity' to renumber the Family Law Act 'to avoid having numbers which have triple letters after them'.[160]

Transitional arrangements

3.135 The transitional provisions in Division 2 of Part 2 of Schedule 1 provide that the new Act will not apply to de facto relationships which broke down before commencement. Ms Judy Harrison of the Australian National University's College of Law described these provisions as 'very harsh'. Both Ms Harrison and WLSA suggested that de facto couples should be able to 'opt in' to the new Act by mutual agreement where their relationship breaks down before commencement and their maintenance or property matters have not been finalised before commencement.[161]3.136 The Department responded to this suggestion as follows:The application of the Bill to relationships that have already broken down provides a clear test relating to the relationships to which the new regime will apply. It also reflects the same approach taken by each State and Territory, with the exception of the Northern Territory, when its property settlement regime was introduced. The suggestion that couples should be able to 'opt in' to the new regime by mutual agreement, particularly where they 'opt in' for an adjudicated determination of issues between them, would need to be accompanied by safeguards, to ensure informed choice and also to protect those in an unequal bargaining position.[162]3.137 The committee notes that WLSA and Ms Harrison did suggest a safeguard requirement that an eligible party certify in writing that they have given informed consent after receiving independent legal advice.[163] WLSA and Ms Harrison also state that no time limit would be necessary on this 'opt in' arrangement, as a 2 year limit will effectively be imposed by another item in the Bill:If the opt in provision is included, it would not be necessary to limit this to parties whose relationship ended within a specified time before commencement because this is already achieved by item 36 [of Schedule 1] which would amend section 44 of the Act. The new section 44 would in effect provide that an application can be made to the court within a period of 2 years from the date the relationship ended and an application can only be made after that date if the court grants leave based on hardship or inability to support themselves.[164]

Western Australia3.151 The WA Attorney-General, the WA Family Court and the Law Society of WA all queried why the Commonwealth had not taken up the opportunity to provide the WA Family Court with power to make superannuation splitting orders.[179]3.152 The WA Attorney-General explained that the Family Court Act 1997 (WA) enables de facto partners (both same-sex and opposite-sex) to use the WA Family Court in property and other disputes. The WA Family Court explained that the WA legislation 'effectively replicates almost all of the property provisions of the [Commonwealth] Family Law Act'.[180] The WA Attorney‑General was pleased that the Bill would provide the same benefits to de facto couples in other Australian jurisdictions that 'WA legislation already provides to similar persons in this State'.[181]3.153 However, the WA Attorney-General was concerned that the Bill does not implement WA's reference of powers to the Commonwealth in the Commonwealth Powers (De facto Relationships) Act 2006 (WA). The WA Attorney-General explained that this law refers powers over superannuation matters arising out of the breakdown of de facto relationships (both same-sex and opposite-sex). The WA Attorney-General was concerned that, by not implementing the WA reference of power, WA de facto partners will be discriminated against, 'in comparison to those in other Australian jurisdictions in superannuation matters'.[182]3.154 Similarly, the WA Family Court pointed out that the court is currently unable to make 'superannuation splitting orders' in cases involving de facto couples and that:State Parliament lacks the necessary constitutional authority to enact legislation that would allow the Court to make such orders and hence parties to de facto marriage relationships in this State do not have the flexibility afforded to married couples to resolve disputes in cases involving superannuation.[183]3.155 The WA Family Court felt that the Bill's failure to deal with this issue is:...unfortunate as the passage of the proposed legislation affords what would appear to be a suitable opportunity to provide the Family Court of Western Australia with this additional jurisdiction.[184]3.156 In response to questions on notice as to why the Bill does not deal with the reference of powers from WA, the Department explained that:Implementation of the narrower reference from WA would leave jurisdictional issues arising in 'cross-border' cases involving WA and any State outside the scheme, where different laws applying in those States will affect outcomes in cases...WA is not able, under its own de facto property settlement and spouse maintenance law, to oust the jurisdiction of the other States, as the Commonwealth is able to do, to the extent that it has power to do so.Implementation of the narrower reference from WA would also require duplication by WA of future amendments to the Commonwealth's regime relating to the making of orders altering interests in non-superannuation property held by de facto partners. Otherwise, the Family Court of Western Australia, in proceedings between de facto partners with superannuation (as most couples will have), would need to take into account one set of considerations, under the Family Law Act 1975, in considering whether to make a superannuation splitting order, and another set of considerations, under WA law, in considering whether it is appropriate to make an order altering interests in their other property.[185]

Coalition Senators

The three coalition senators have made two further recommendations:1.1 The Coalition Senators support recommendations 1 to 5 of this report but wish to make two additional recommendations in relation to this Bill.Amendment to Item 21 of Schedule 1 to insert new section 4AA1.2 Paragraph 4AA(5)(b) in the Bill currently provides:A de facto relationship can exist even if one of the persons is legallymarried to someone else or in another de facto relationship.1.3 A person cannot be part of 'a couple living together on a genuine domesticbasis' with more than one person at a time unless the Parliament wants to endorse defacto polygamy. It would be hard to describe the parties as a 'couple' when there areother de facto partners in residence.Recommendation 11.4 The Coalition Senators recommend that the words “or in another defacto relationship” in paragraph 4AA(5)(b) of the Bill be omitted.Recommendation 21.10 The Coalition Senators recommend that the proposed section 90SB beomitted, and substituted with the following:90SB When this Division applies – that there is a child etc.(1) A court may make an order under section 90SE or 90SG, in relation to ade facto relationship, only if the court is satisfied:(a) that there is a child of the de facto relationship; or(b) that the relationship is or was registered under a prescribed law of aState or Territory.(2) A court may make a declaration under section 90SL if it is satisfied thatthe applicant or respondent was in a de facto relationship with anotherparty to the proceedings.(3) A court may make an order under section 90SM, in relation to a de factorelationship only if the court is satisfied:(a) that there is a child of the de facto relationship; or(b) that:(i) the party to the de facto relationship who applies for theorder made substantial contributions of a kind mentioned inparagraph 90SM(4)(a), (b) or (c); and(ii) a failure to make the order would result in serious injusticeto the applicant; or(c) that the relationship is or was registered under a prescribed law ofa State or Territory.(4) If the court has power to make an order under section 90SM by reasononly of the fact that the party to the de facto relationship who applies forthe order made substantial contributions of a kind mentioned in paragraph90SM(4)(a), (b) or (c), then the court is limited in its considerations undersection 90SM, to paragraphs 90SM(4)(a), (b) or (c).

2016 winner of a Queensland Law Society Equity and Diversity Award: The Australian Gay and Lesbian Law Blog: " (a)strong and pioneering commitment to the rights of and interests of LGBTI people in Australia" Queensland Law Society May, 2016

I am one of Australia's leading surrogacy and divorce lawyers. I was admitted in 1987, and have been an accredited family law specialist since 1996.
I am a partner of Harrington Family Lawyers, Brisbane.
I am an international representative on the American Bar Association's Artificial Reproductive Technology Committee. I am the first international Fellow of the American Academy of Assisted Reproductive Treatment Attorneys. I am one of 33 Australian practising lawyers who are Fellows of the International Academy of Family Lawyers, one of the most prestigious family law groups in the world. I am a founding member of the Australian Chapter of the Association of Family and Conciliation Courts.
I have written and spoken extensively about family law, domestic violence and surrogacy.
I have handled pretty well every type of family law case there is known in over 30 years, and have advised surrogacy/fertility clients from throughout Australia and at last count 24 countries overseas. I have obtained surrogacy orders in Qld, NSW, Vic and SA- the only lawyer to have done so.